Canadian Employment Law Today

4 Canadian HR Reporter, a Thomson Reuters business 2014 Major changes for specialized knowledge workers Its not as easy for foreign workers and their employers to avoid the LMO process by claiming specialized skills BY SERGio KaRaS F ollowing the federal government's scrutiny of the temporary foreign worker program, employers have increasingly looked at ways to bring tem- porary foreign workers to Canada while avoiding the cumbersome labour market opinion (LMO) process. One of the ways in which this is often done is by using the Intra-Company Transferee category, which allows the transfer of senior managerial and executive personnel — as well as Special- ized Knowledge workers who comply with the prescribed criteria — who are perform- ing services for an employer in Canada that is a related entity to their employer abroad. Intra-Company Transferees admitted un- der the Specialized Knowledge category are LMO exempt. Eff ective immediately, immi- gration offi cers are directed to use the new criteria under the OB to determine if the ap- plicant possesses a high standard of special- ized knowledge and is receiving wages that are consistent with the Canadian prevailing wage for that occupation. Applicants must demonstrate knowledge and expertise To have "specialized knowledge" and to meet the requirements of the new policy, an Intra-Company Transferee Specialized Knowledge applicant would be required to demonstrate a high degree of both propri- etary knowledge and advanced expertise. Proprietary knowledge alone, or advanced expertise alone, does not qualify the appli- cant under this exemption. e onus is on the applicant to provide evidence that she meets this standard. Documentary evidence to substantiate this expanded level of knowledge may include: a resume, reference letters, let- ter of support from the employer, job de- scriptions outlining the level of training acquired, years of experience in the fi eld, degrees or certifi cations obtained that are related to the fi eld of work, list of publi- cations and awards received by the ap- plicant, and a detailed description of the work to be performed in Canada. e new defi nition articulates the ele- ments of "specialized knowledge" as: • "Proprietary Knowledge" is company- specifi c expertise related to a company's product or services. It implies that the company has not divulged specifi ca- tions that would allow other companies to duplicate the product or service. • "Advanced proprietary knowledge" would require an applicant to demon- strate uncommon knowledge of the fi rm's products or services and its ap- plication in international markets, or an advanced level of expertise or knowl- edge of the enterprise's processes and procedures such as its production, re- search, equipment, techniques or man- agement. • "Advanced level of expertise" is also necessary, which would require special- ized knowledge gained through signifi - cant and recent experience with the or- ganization and used by the individual to contribute signifi cantly to the employ- er's productivity. "Signifi cant" is not de- fi ned and is not always a meaningful in- dicator but it relates to the length of the foreign worker's experience. "Recent" is defi ned as experience obtained within the last fi ve years. In assessing the "advanced level of ex- pertise," offi cers must consider: • Abilities that are unusual and diff erent from those generally found in a particu- lar industry and that cannot be easily transferred to another individual in the short-term. • e knowledge or expertise must be highly unusual both within the industry and within the host fi rm. • It must be of a nature such that the appli- cant's proprietary knowledge is critical to the business of the Canadian branch and a signifi cant disruption of business would occur without the applicant's ex- pertise. • e applicant's proprietary knowl- edge of a particular business process or methods of operation must be unusual, not widespread across the organization, and not likely to be available in the Ca- nadian labour market. It must be noted that skill in implement- ing an off -the-shelf product would not, by itself, be considered to be specialized knowledge unless the product has suff ered signifi cant modifi cations to the point that it has become quite unique. So, for exam- ple, if an individual is very skilled at cus- tomizing a commonly available computer program that, by itself, would not be suffi - cient to qualify the person as a Specialized Knowledge worker. However, if the prod- uct is combined with other products to achieve a customized and unique solution that is proprietary to the employer, that may be considered as a qualifying degree of expertise. e new criteria will require Special- ized Knowledge to be "unique and un- common," held by only a small number or small percentage of employees of a given enterprise. Under the new criteria, Spe- cialized Knowledge workers must demon- strate they are key personnel, not simply highly skilled. In addition, Specialized Knowledge workers will have to demonstrate: • ey are employed by and under the di- rect and continuous supervision of the host company. • ey will not normally require training Proprietary knowledge alone, or advanced expertise alone, does not qualify an applicant under the Specialized Knowledge exemption. case in PoinT: IMMIGRATION ON JUNE 9, 2014, the federal government published Operational Bulletin (OB) 575, which expands guidelines for immigration offi cers assessing work permit applications for Intra-Company Transferees with Specialized Knowledge. The OB provides direction to the offi cers as to how to evaluate the criteria under which those workers are granted work permits. The OB also makes it more diffi cult to use this exemption from the Labour Market Opinion (LMO) process as it now requires a higher threshold of advanced proprietary knowledge to qualify. Immigration lawyer Sergio Karas looks at the new scrutiny of foreign workers claiming specialized skills. BACKGROUND

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